Opinion
No. 99-K-2489.
February 2, 2000.
APPEAL FROM THE CRIMINAL DISTRICT COURT, ORLEANS PARISH, NO. 405-477, LEON CANNIZZARO, J.
Harry F. Connick, District Attorney, Norman Comeaux, Asst. Dist. Atty., New Orleans, LA, Attorneys for State of La.
John B. Noble New Orleans, LA, Attorney for George Dawson.
Court composed of Judge WILLIAM H. BYRNES, III, Judge CHARLES R. JONES and Judge DENNIS R. BAGNERIS, Sr.
Relator, The State of Louisiana, seeks this Court's supervisory jurisdiction regarding the judgment of the trial court finding that the respondent, George Dawson, was not a multiple offender as defined in LSA-15:529.1. Following our review, we affirm the judgment of the trial court.
FACTS
George Dawson was charged with possession of cocaine with the intent to distribute, a violation of LSA-R.S. 40:966. Dawson initially pled not guilty to the charge, and later withdrew his plea of not guilty and entered a plea of guilty as charged. The trial court then ordered, a pre-sentencing investigation and scheduled a hearing date for sentencing. On September 9, 1999, the trial court sentenced Dawson to serve seven years at hard labor.
Subsequently, the State filed a multiple bill of information against Dawson, alleging that he was a second-felony offender based upon a conviction he received in Georgia. The predicate offense was a conviction of theft by receiving stolen property. Following two separate hearings on the multiple bill, the trial court found that Dawson was not a multiple offender and reinstated the original sentence. From this judgment, the State filed the instant supervisory writ application.
In the case sub judice, the trial court reasoned that the State had to prove, through competent evidence, the value of the stolen goods in the predicate offense otherwise the offense would be categorized as a misdemeanor. Here, the State attempted to introduce a police report executed in Georgia and documents from the New Orleans Police Department, which estimated the value of the stolen vehicle at $5,000. The trial court ruled that the documents were inadmissible since the value of the stolen property was not included in the bill of indictment from Georgia. Therefore, the trial court found that the Georgia conviction was no more than a misdemeanor offense and could not be used to enhance Dawson's punishment for the Louisiana conviction. We agree.
Ga. Code Ann. § 16-8-7, provided in pertinent part:
(a) A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. "Receiving" means acquiring possession or control or lending on the security of the property.
(b) In any prosecution under this Code section it shall not be necessary to show a conviction of the principal theft.
Unlike Louisiana's analogous statute, LSA-R.S. 14:69, the Georgia statute does not require that the value of the "alleged" stolen goods be proven in order for the court to determine the penalty to be assessed against, a convicted thief. Therefore, it is not possible to ascertain whether the Georgia offense in the instant matter was a felony or misdemeanor since all that was needed for a conviction was evidence of possession of the stolen goods. On the other hand, our statute [LSA-R.S. 14:69] requires more specificity as to the value of the stolen goods before a felony conviction is completed.
In State v. Carouthers, 618 So.2d 880 (La. 1993), our Supreme Court previously ruled on the issue of sentence enhancement for convictions from foreign jurisdictions. The Supreme Court opined that the multiple bill statute allows Louisiana's courts to enhance the defendant's sentence on the basis of convictions from another state or under federal law when the convictions would otherwise be classified as felonies if they were committed in this state. See Carouthers, 618 So.2d at 882. The statute requires Louisiana courts to determine the analogous state crime according to the nature of the act involved, not the penalty provided for the offense in the foreign jurisdiction. Id; see also State v. Berndt, 416 So.2d 56 (La. 1982); and State ex rel Wilson v. Maggio, 422 So.2d 1121 (La. 1982). Additionally, we decline to follow the Third Circuit's holding in State in Interest of B.J., 617 So.2d 238, since the State herein did not present any credible, admissible evidence to support its estimation of the vehicle's value.
Having found that the value of the stolen property is an integral part of the classification of the offense under LSA-R.S. 14:69, we conclude that the trial court was not clearly wrong in dismissing the multiple bill and reinstating its original sentence. Accordingly, relator's writ application is denied.
WRIT APPLICATION DENIED .
BYRNES, J., DISSENTS WITH REASONS.
I respectfully dissent based on my conclusion that the trial court erred in ruling that the Georgia conviction could not be used to enhance the defendant, George Dawson's sentence as a second offender under La.R.S. 15:529.1.
The trial court held that the prior conviction from Georgia was in essence the equivalent of La.R.S. 14;69, possession of stolen goods, and the bill of information did not designate the value of the goods. The trial court noted that because there was no designation of value, it could only conclude that the value of the stolen car was minimal. Therefore, the trial court concluded that the Georgia conviction was not a felony and could not be used to find that Dawson was a second offender.
In Georgia Dawson was convicted of theft by receiving stolen property, a violation of Ga. Code § 16-8-7. This statute contains neither the penalty provisions nor the value of the stolen goods which determines the penalty for a violation of the statute. However, Ga. Code § 16.-8-12, the general penalty provision, provides in pertinent part:
(a) A person convicted of a violation of Code Sections 16-8-2 through 16-8-9 shall be punished as for a misdemeanor except:
(1) If the property which was the subject of the theft exceeded $500.00 in value, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor;
* * *
(4)(A) The provisions of paragraph (1) of this subsection notwithstanding, if the property which was the subject of the theft was a motor vehicle or was a motor vehicle part or component which exceeded $100.00 in value . . ., by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor; provided, however, that any person who is convicted of a second or subsequent offense under this paragraph shall be punished by imprisonment for not less than one year nor. more, than 20 years.
In the present case the official documents presented by the State with respect to the Georgia conviction do not indicate a value of the stolen car. Under La.R.S. 14:69, the analogous Louisiana statute, if the value of the stolen goods is less than $100, the crime is a misdemeanor, and any La.R.S. 14:69 misdemeanor conviction cannot be used in a sentence enhancement proceeding under La.R.S. 15:529.1. The State maintains that the police reports from Georgia, where the stolen car was recovered, and from Louisiana, where the car was stolen, provided the value of the stolen car. However, the trial court noted that the values given in the police reports may not have been indicative of the true value of the car.
The State argues that the court could estimate the value of the car based upon its characteristics. In State in Interest of B.J., 617 So.2d 238 (La.App. 5 Cir. 1993), the appellate court found the State failed to prove the value of the stolen car the defendant possessed was more than $500. However, looking at the type, condition, and age of the car, the court concluded that the car was worth more than $100, and the court amended the verdict to reflect this finding.
In the present case the trial court found that the State only proved the car had "some value," and the State's evidence did not prove that the value was over $100. The trial court held that the evidence was inconclusive in proving that the Georgia conviction was a felony. See State v. Williams, 610 So.2d 129 (La. 1992).
In State v. Carouthers, 618 So.2d 880 (La. 1993), the Louisiana Supreme Court stated that the penalty received is not determinative of the crime's status in Louisiana. Therefore, the penalty as a misdemeanor meanor in Georgia is not determinative of the crime's status in Louisiana.
By looking at both Georgia Code § 16-8-7 and § 16-8-12 (a)(4)(A), the prior conviction would have been a felony if committed in Louisiana. When tied to the penalty provisions the defendant received in Georgia, the penalty shows that the value of the stolen car had to have been at least $100. Pursuant to Ga. Code § 16-8-12 (a)(4)(A), the defendant could not have received a three-year sentence unless the value of the car exceeded $100. Possession of stolen property valued over $100 under La.R.S. 14:69 is punishable at hard labor, which under La.R.S. 14:2 (4) makes the crime a felony. Thus, although the actual bill of information does not state a value of the stolen car, the sentence the defendant received could only have been legally imposed if the value of the stolen car he possessed was over $100, which in Louisiana is a felony offense. Therefore, the evidence is sufficient to show that the Georgia conviction would be a felony for purposes of the multiple bill proceeding for enhancement of Dawson's sentence under La.R.S. 15.529.1.
Accordingly, I would reverse the ruling of the trial court, and remand the case for further proceedings.